HKSAR v. WAN WAI LUN

DCCC 527/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 527 OF 2014

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REASONS FOR SENTENCE

1.  Wan Wai Lun you have pleaded guilty to three charges of burglary, contrary to section 11 of the Theft Ordinance, Chapter 210 (charges 1, 2 & 4).

2.  On three occasions between the 19 February and the 4 March this year you burgled a residential building at 202-212 Yee Kuk Street, Sham Shui Po, which building was at the time under redevelopment by the Urban Redevelopment Authority.

3.  In summary the particulars of each burglary are that firstly in the early hours of the 20 February you broke open a locked door of a storeroom on the second floor and stole copper pipes, electric wires and various construction tools to the value of $16,200 (charge 1).

4.  Four nights later in the early hours of the 24 February you broke open a locked door of a storeroom on the first floor and stole various construction tools to the value of $13,150 (charge 2).

5.  The third occasion was in the early hours of the 4 March when you entered a pump room on the second floor and used a saw to open a wooden box.  A security guard on hearing the sound of sawing called the police.  The police found you on the second floor holding a rucksack containing various construction tools, including tools to the value of $6,200, which you had stolen from the wooden box (charge 4).

6.  Under caution and in a subsequent interview you admitted you were stealing from the building and used a saw to cut open the lock of the wooden box.  You also admitted the burglaries of the two storerooms in February.    

7.  In passing sentence I have carefully considered everything said on your behalf by Ms Wong together with the content of your letter submitted to court today.  I take into account that whilst you have previous convictions for dishonesty you have none for burglary.

8.  Ms Wong asks that I call for a DATC report the offences having been committed because of your drug addiction.  Noting that you have been to the DATC on three previous occasions in 2003, 2009 and 2010 I am satisfied to again send you to a DATC would not reflect the gravity of the offences committed by you.

9.  Ms Wong stating that there was no forceful entry on to the site; the burglaries were not well planned; that you acted alone and describing you as an opportunist (see paragraph 13 of the written submission) submits that if the court is to impose a custodial sentence and not a DATC order then a 2 year starting point is appropriate (see paragraph 19 of the written submission).

10.  Reliance is placed by Ms Wong on HKSAR v Kwok Chun Fung DCCC 212/2010, which was also burglary of a construction site.  In sentencing the defendant the judge accepted the offence was opportunistic; there was a low degree of sophistication and the value of the stolen property $300 could be regarded as minimal.  Notwithstanding the defendant was found in possession of two screwdrivers the judge took a starting point of 2 years imprisonment. 

11.  Whether or not the starting point adopted in Kwok Chun Fung was correct I have no hesitation in distinguishing the case.  I have viewed the photographs of the storerooms and the wooden box.  I do not regard these as opportunistic burglaries for example where someone passes by an open door or vacant premises where food or items of little value are stolen (see for example HKSAR v Chau Man Ying CACC 439/2011).  You had to break into the two storerooms in February and prior to arrest had just used a saw to break open the wooden box.  Further valuable items were taken on each occasion to the total value of $35,550.

12.  The correct starting point for a single burglary of residential premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years imprisonment (see Attorney General v Lui Kam Chi [1993] 1 HKC 215).  The building being a construction site under redevelopment I am satisfied a lower starting point of 2 years and 6 months imprisonment is appropriate for each offence (see for example HKSAR v Yeung Kwok Sang CACC 4/2006).

Aggravating features

13.  On the 22 February you were placed on police bail for an offence of going equipped. Two days later you committed the second burglary and the following week the third burglary.  The commission of offences on bail is an aggravating feature of sentence.  In the circumstances I increase the starting point for each of charges 2 & 4 by 3 months imprisonment to 2 years and 9 months imprisonment. 

14.  Giving you full credit for your pleas of guilty reduces the sentence on charge 1 to 1 year and 8 months imprisonment and on charges 2 & 4 to 1 year and 10 months imprisonment.

Confession

15.  Ms Wong submits you were fully cooperative with the police admitting all offences.  The fact a defendant freely confesses at an early stage to the offences and subsequently pleads guilty is to be subsumed within the one-third discount (see HKSAR v Pakit Joni CACC 10/2013).

16.  In HKSAR v Tsang Kai On CACC 79/2010, a case of domestic burglary, the Court of Appeal held that a further reduction of 4 months imprisonment was appropriate where a conviction would not have been secured without the confession of the defendant.  The Court of Appeal in HKSAR v Ma Ming CACC 23/2012 however said this factor does not support the argument that defendants must be given a further discount over and above the one-third discount. 

17.  Mr McNamara having confirmed the only evidence on charge 1 is your confession, the CCTV footage unlike that for charge 2 does not capture your face, I am satisfied in the circumstances an additional discount of 4 months imprisonment is warranted reducing the sentence on charge 1 to 1 year and 4 months imprisonment.

Totality

18.  In Attorney General v Lui Kam Chi the court said that where the offences were committed in different premises against different victims on different dates consecutive sentences should be imposed.  The burglaries were committed against three different victims, albeit in the same building, on three different days over a period of two weeks. 

19.  In the circumstances I am satisfied a total sentence of 2 years and 10 months imprisonment properly reflects your criminality on the three charges.  In determining the totality of sentence to be served I have considered whether the sentence of 2 months imprisonment imposed on the 20 June in KCCC 1391/2014 for the going equipped offence should be taken into account.

20.  In my view the sentence imposed in that case, the facts of which I have read, can be described as lenient.  This may in part be due to the fact the magistrate will have been unaware that in the same week you had committed two burglaries in the same area you were arrested for going equipped. 

21.  From the court papers it would appear you were not charged for going equipped until April which was after you had been charged for the burglaries.  There being a clear connection between all the offences they should have all been transferred to the District Court so that one judge sentences for all offences.

22.  Had I been the sentencing judge for the going equipped offence I would have taken a starting point of not less than 9 months which after plea would have been reduced to 6 months imprisonment.  Considering totality of sentence I would have ordered 2 months consecutive to the sentence imposed for the burglaries. Accordingly no adjustment of sentence is required on account of the fact that you have served a sentence of 2 months imprisonment for an offence committed in the same time period of the three charges.

Sentence

23.  You are convicted and sentenced as follows:

Charge 1 – 1 year and 4 months imprisonment;

Charge 2 – 1 year and 10 months imprisonment;

9 months consecutive and 13 months concurrent to charge 1;

Charge 4 – 1 year and 10 months imprisonment;

9 months consecutive and 13 months concurrent to charges 1 & 2;

Total sentence to be served by you is 2 years and 10 months imprisonment.